Judge Chutkan’s Election Interference

What is election interference? That is the question that arises in the release of nearly 2,000 pages of evidence against President Trump but 18 days before the election. Though the disclosures are marbled with redactions, they amount to yet more of Special Counsel Jack Smith’s allegations and evidence coming into view — three weeks before the election. And while Trump has not yet had his opportunity for a rejoinder. Call it the presumption of guilt.This is a far cry from due process. More troubling even than the evidence that hit the docket — all in all, not much new surfaced — was Judge Chutkan’s ruling justifying her handling of the immunity case, Trump v. United States. She was tasked by the Supreme Court with determining which acts alleged by Mr. Smith are official, and therefore presumptively immune. The government aims to convict Trump of crimes like any private citizen.Trump contends that all of this traffic on the docket violates the Department of Justice’s own policy against interfering in elections. In a dizzying development Judge Chutkan, accuses him of election interference. She reasons that if she “withheld information that the public otherwise had a right to access solely because of the potential political consequences of releasing it, that withholding could itself constitute — or appear to be — election interference.”That argument strikes us as unconvincing. Judge Chutkan promises that she “will therefore continue to keep political considerations out of its decision-making, rather than incorporating them,” as she alleges that Trump desires. She intones that “litigation’s incidental effects on politics are not the same as a court’s intentional interference with them.” All of this has the ring not so much of truth as of tautology.Why, after all, does the Justice Department have a rule against launching prosecutions in the face of an election? In an earlier ruling Judge Chutkan swatted aside Trump’s request that she press the prosecutor on whether this deluge of documents puts him crosswise with DOJ’s own operating code. She suggests that isn’t something of which the court is, or should be, cognizant. But what of the underlying fear of playing politics with prosecution?Judge Chutkan’s response to Trump’s concern with how this case is unfolding is to remind him that what she’s doing is “simply how litigation works.” Balderdash. There has never been a case like this one, and never has a president been charged on the campaign trail. She’s the same judge who insisted there is no immunity at all for presidents (wrong, it turns out). Did that not strike even a note of humility in her courtroom in respect of how litigation works? Let us say, again, that we carry no brief here for President Trump. The brief we carry, or aspire to carry, is for due process. Some day, a Democrat is going to be in the cross hairs of a Republican administration. They will be citing the precedents set by the Javert-like pursuit of Trump by Judge Chutkan, General Garland, Mr. Smith, & Co., who have attempted to achieve in the courts what they couldn’t accomplish at the ballot box.

Judge Chutkan’s Election Interference

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